cent limitation for purposes of the exemption under section 13(b) (10) if it is made to a "customer who is engaged in the bulk distribution of such products for resale". The identity of such customers is generally well known in the trade. For example, this would generally include other petroleum jobbers, brokers, wholesalers, and any others who engage in the bulk distribution of petroleum products for resale. Thus a sale to a petroleum jobber who is engaged in selling petroleum products to gasoline stations would clearly be a sale to a customer described in section 13(b) (10). The essential tests are first that the customer must be one who is engaged in the distribution of "such products", which means petroleum products; second that he must engage in "the bulk distribution" of such products; and finally that he must be engaged in such distribution "for resale". These three requirements are discussed in §§ 794.146 to 794.148. $ 794.146 Petroleum products.

What constitutes petroleum products is explained in § 794.121. A sale by an enterprise engaged in the wholesale or bulk distribution of petroleum products will be included in the 25 percent limitation under the exemption only if it is made to a customer who engages in the distribution of such products. Sales to customers who are not engaged in the distribution of petroleum products will not be included in the 25 percent limitation.

§ 794.147 "Bulk distribution".

The term "bulk distribution" means distribution to customers' storage tanks or, in the case of packaged lubricating oil, to the customers storage facility, as distinguished from delivery of an amount necessary to service a motor vehicle, into the tank of such vehicle for use in the propulsion of the vehicle. Typically, bulk distribution deliveries are made in tank trucks, motor carriers, or motor transports.

§ 794.148 Distribution "for resale".

A sale made to a customer engaged in the bulk distribution of petroleum products will be included in the 25 percent limitation only if the customer engages in the bulk distribution of petroleum products "for resale". Except with respect to a specific situation regarding certain building materials, the word "resale" is not defined in the Act. The

common meaning of "resale" is the act of "selling again". A sale is made for resale when the seller knows or has reasonable cause to believe that what is sold by him will be resold by the purchaser in the same or a different form. Where the sale is thus made for resale, it does not matter what ultimately happens to the subject of the sale. Thus, the fact that goods sold for resale are consumed by fire or no market is found for them and they are therefore never resold does not alter the character of the sale which is made for resale. In considering whether there is a sale of petroleum products for resale in any specific situation, the term "sale" includes, as defined in section 3 (k) of the Act, "any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition".

APPLICATION OF EXEMPTION TO EMPLOYEES § 794.149 Employees who are exempt.

Section 13(b) (10) provides that the exemption from the overtime requirements of the Act shall be applicable to "any employee of" a distribution enterprise which meets its requirements. As was pointed out in §§ 794.104 and 794.119 to 794.124, an enterprise which meets the requirements of section 13(b) (10) may engage in activities other than the wholesale or bulk distribution of petroleum products, such as the sale of coal, ice, feed or the recapping of tires. It is clear, as was pointed out in § 794.104, that it was not intended that the exemption provided by section 13(b) (10) should be applicable to employees who engage in these other activities which may be a part of the enterprise but which do not constitute engagement in the wholesale or bulk distribution of petroleum products. Where an exemption was intended to be applicable to such other employees, it was specifically provided in other sections of the Act. Thus, for example, under appropriate circumstances, there are exemptions under section 13 (a) (2) of the Act for employees engaged in the sale of ice, lumber, feed or the recapping of tires. (These exemptions are explained in §§ 779.355 through 779.359, §§ 779.362 through 779.364, and §§ 779.372 through 779.375 of this chapter.) Whether the wholesale or bulk distribution of petroleum products in such cases constitutes the major activity of the enterprise or is only a minor part of the enterprise's business operations,

it is clear that it was intended that the overtime exemption under section 13(b) (10) should be applicable to those employees of the enterprise who are engaged in the wholesale or bulk distribution of petroleum products. Thus, the exemption from the overtime pay requirements of the Act under section 13(b) (10) will be applicable, in any case where the enterprise meets the requirements of section 13 (b) (10), to all the employees of the enterprise who are engaged in the storage and delivery of petroleum products for the enterprise, and to those employees whose work is required for the performance of the activities in the wholesale or bulk distribution of the petroleum products. The exemption is applicable not only to such employees as drivers, helpers, loaders, dispatchers, and warehousemen who engage in the activities of the delivery and storage of petroleum products, but also to such employees as office, management, and sales personnel, maintenance, custodial, protective personnel, and any others, who engage in activities which are required for the performance of the functions of the wholesale and bulk distribution of the petroleum products. § 794.150 Effect of activities other than "wholesale or bulk distribution of petroleum products".

In some cases, as noted in § 794.104, enterprises engaged in the wholesale or bulk distribution of petroleum products also engage in other activities. Examples are the operation of tire recapping establishments or gasoline service establishments, the sale and servicing of oil burners, and the distribution of coal, ice, feed, building supplies, paint, etc. While these activities, in appropriate cases, may be included in an enterprise engaged in the wholesale or bulk distribution of petroleum products as "related activities" (see §§ 794.119 through 794.124), they are not the type of activities for which the section 13 (b) (10) exemption was intended. In such cases, the employees who are exclusively engaged in the wholesale or bulk distribution of petroleum products would nonetheless be entitled to exemption under 13(b) (10), assuming all the requirements for exemption are met. The employees engaged in activities other than the wholesale or bulk distribution of petroleum

products would, of course, not come within the scope of the section 13(b) (10) exemption. For example, employees of separate gasoline service establishments are not exempt under section 13(b) (10); however, they may be exempt from the minimum wage and overtime pay provisions of the Act under section 13(a) (2), or from the overtime pay provisions of the Act under section 13(b) (8). Where an employee who is otherwise engaged in the wholesale or bulk distribution of petroleum products including activities which are a necessary part thereof, devotes an insubstantial amount of time (for administrative purposes, not more than 20 percent in a workweek) to these other activities, the section 13(b) (10) exemption will not for that reason be considered inapplicable to him.

§ 794.151 Workweek unit in applying the exemption.

The unit of time to be used in determining the application of the exemption to an employee is the workweek. (See Overnight Transportation Co. v. Missel, 316 U.S. 572.) A workweek is a fixed and regularly recurring interval of 7 consecutive 24-hour periods. It may begin at any hour of any day set by the employer and need not coincide with the calendar week. Once the workweek has been set it commences each succeeding week on the same day and at the same hour. Changing of the workweek for the purpose of escaping the requirements of the Act is not permitted.

§ 794.152 Work exempt under another section of the Act.

Where an employee performs work during his workweek, some of which is exempt under one section of the Act, and the remainder of which is exempt under another section or sections of the Act, the exemptions may be combined. The employee's combination exemption is controlled in such case by that exemption which is narrower in scope. For example, if part of his work is exempt from both minimum wage and overtime compensation under one section of the Act, and the rest is exempt only from the overtime pay requirements of section 13 (b) (10), the employee is exempt that week from the overtime pay provisions, but not from the minimum wage requirements.

The Act contains other exemptions which may have applicability to certain employees of enterprises engaged in the wholesale or bulk distribution of petroleum products. Section 13(b) (8) grants an overtime exemption for employees of gasoline service stations (see Part 779 of this chapter interpreting the Act as it applies to retailers of goods and services). Section 13(a) (1) provides minimum wage and overtime exemption for employees employed in a bona fide "executive," "administrative," or "professional" capacity or in the capacity of an "outside salesman" (see Part 541 of this chapter, defining and delimiting the quoted terms and interpreting generally section 13(a) (1)). Section 13(a)

a

(2) also grants a minimum wage and overtime exemption for any employee employed by certain retail or service establishments (see Part 779 of this chapter, interpreting the Act as it applies to retailers of goods or services). Section 13(b) (1) provides an overtime exemption for certain drivers, drivers' helpers, loaders, or mechanics of motor carriers meeting specified requirements (see Part 782 of this chapter interpreting this exemption). Section 13(b) (11) provides an overtime exemption for any employees employed as a driver or driver's helper making local deliveries, who is compensated for such employment on the basis of trip rates, or other delivery payment plan, if the Secretary shall find that such a plan has the general purpose and effect of reducing hours worked by such employees to, or below, the maximum workweek applicable to them under section 7(a) of the Act.